Federal Arbitration Act
Supreme Court Continues Down Pro-Arbitration Road
June 12, 2014
Although arbitration features regularly on the Supreme Court’s docket, a number of significant cases have been before the Court recently. The gist of these rulings is a continued pro-arbitration approach, consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 1. The Supreme Court also confirmed that parties to an arbitration contract are bound by the words of that contract. In addition, by denying certiorari in the Delaware Coalition for Open Government v. Strine case, the Court struck...
June 12, 2014
Although arbitration features regularly on the Supreme Court’s docket, a number of significant cases have been before the Court recently. The gist of these rulings is a continued pro-arbitration approach, consistent with the Federal Arbitration Act (FAA), 9 U.S.C. § 1. The Supreme Court also confirmed that parties to an arbitration contract are bound by the words of that contract. In addition, by denying certiorari in the Delaware Coalition for Open Government v. Strine case, the Court struck...
FINRA Reverses Hearing Panel in Schwab Enforcement Case: Class Action Waiver Violates FINRA Rules
May 14, 2014
In a stunning but hoped-for result (based on am amicus brief I co-authored in the case), FINRA’s Board of Governors reversed a disciplinary hearing panel decision in the FINRA v Schwab enforcement action. (See some of my previous blog posts on the subject, here, here and here.) That hearing panel had held, among other things, that Schwab’s class action waiver in its standard customer agreement’s pre-dispute arbitration clause violated FINRA rules but those rules could not be enforced...
May 14, 2014
In a stunning but hoped-for result (based on am amicus brief I co-authored in the case), FINRA’s Board of Governors reversed a disciplinary hearing panel decision in the FINRA v Schwab enforcement action. (See some of my previous blog posts on the subject, here, here and here.) That hearing panel had held, among other things, that Schwab’s class action waiver in its standard customer agreement’s pre-dispute arbitration clause violated FINRA rules but those rules could not be enforced...
Motion to Compel Arbitration Denied as to Non-Signatories to Agreement
February 20, 2014
In a recent case involving an unsuccessful aquatic ecosystem restoration project in Clearwater, Florida, the Middle District of Florida applied the Federal Arbitration Act to resolve an arbitrability dispute, which involved a marine and dredging construction company, its performance bond sureties, and a dredging contractor. First granting a motion to compel arbitration with respect to the construction company and the contractor, both of which had signed the arbitration agreement, the court then reviewed...
February 20, 2014
In a recent case involving an unsuccessful aquatic ecosystem restoration project in Clearwater, Florida, the Middle District of Florida applied the Federal Arbitration Act to resolve an arbitrability dispute, which involved a marine and dredging construction company, its performance bond sureties, and a dredging contractor. First granting a motion to compel arbitration with respect to the construction company and the contractor, both of which had signed the arbitration agreement, the court then reviewed...
Ninth Circuit Says Arbitration Agreements Cannot Restrict Grounds for Vacating Award
January 6, 2014
In the Hall Street decision in 2008, SCOTUS held that parties could not contractuallyenlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section. This week, the Ninth Circuit held that parties also cannot contractually restrict Section 10 by providing for “binding, non-appealable arbitration.” In re Wal-Mart Wage and Hour Employment Practices Litig., __ F.3d __, 2013 WL 6605350 (9th Cir. Dec....
January 6, 2014
In the Hall Street decision in 2008, SCOTUS held that parties could not contractuallyenlarge Section 10 of the Federal Arbitration Act by agreeing that a court could vacate the arbitration award for reasons not found in that section. This week, the Ninth Circuit held that parties also cannot contractually restrict Section 10 by providing for “binding, non-appealable arbitration.” In re Wal-Mart Wage and Hour Employment Practices Litig., __ F.3d __, 2013 WL 6605350 (9th Cir. Dec....
Improving Arbitration-Award Making and Enforcement by Faithfully Implementing the Purposes and Objectives of the Federal Arbitration Act, Part II
December 4, 2013
Part II: A Consent-Based Framework for Enforcing Arbitration Awards Enforcing Arbitration Agreements to Promote Arbitration The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle...
December 4, 2013
Part II: A Consent-Based Framework for Enforcing Arbitration Awards Enforcing Arbitration Agreements to Promote Arbitration The purposes and objectives of the FAA are the same whether the question is whether arbitration should be compelled, litigation should be stayed or an award confirmed or vacated. The cornerstone of the FAA is the enforcement mandate of Section 2, which says: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle...
Legal Ethics Rules and the Federal Arbitration Act
September 8, 2013
While the U.S. Supreme Court as recently as last month has affirmed its preference to enforce contractual arbitration clauses, a federal judge in Philadelphia questioned Wednesday whether that standard is impacted by professional ethics rules when the arbitration clause involves a law firm's client engagement letter. In a hearing on whether the legal malpractice case of Sanford v. Bracewell & Giuliani should be stayed pending arbitration, U.S. District Judge Joel Slomsky of the Eastern District...
September 8, 2013
While the U.S. Supreme Court as recently as last month has affirmed its preference to enforce contractual arbitration clauses, a federal judge in Philadelphia questioned Wednesday whether that standard is impacted by professional ethics rules when the arbitration clause involves a law firm's client engagement letter. In a hearing on whether the legal malpractice case of Sanford v. Bracewell & Giuliani should be stayed pending arbitration, U.S. District Judge Joel Slomsky of the Eastern District...
The Federal Arbitration Act and Displacement of Agency Regulation
August 29, 2013
Maureen Weston, Professor of Law at Pepperdine University School of Law, has published a timely article entitled, The Accidental Preemption Statute: The Federal Arbitration Act and Displacement of Agency Regulation, 6 Penn. St. Y.B. on Arb. & Mediation 59 (2013); Pepperdine University Legal Studies Research Paper No. 2013/15. In her paper, Professor Weston examines the dichotomy between the Federal Arbitration Act and the regulatory procedures used by federal agencies. Here is the abstract: The...
August 29, 2013
Maureen Weston, Professor of Law at Pepperdine University School of Law, has published a timely article entitled, The Accidental Preemption Statute: The Federal Arbitration Act and Displacement of Agency Regulation, 6 Penn. St. Y.B. on Arb. & Mediation 59 (2013); Pepperdine University Legal Studies Research Paper No. 2013/15. In her paper, Professor Weston examines the dichotomy between the Federal Arbitration Act and the regulatory procedures used by federal agencies. Here is the abstract: The...
Loree on Oxford Health, Part II
August 27, 2013
Part II.A: What to Make of Oxford? In our last post (here) we discussed the U.S. Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. (U.S. June 10, 2013), which, among other things, reaffirmed that Section 10(a)(4) of the Federal Arbitration Act (“FAA”) authorizes judicial review of FAA-governed-arbitration-award outcomes based on the labor-arbitration-derived “manifest disregard of the agreement” standard. This post, which has been divided...
August 27, 2013
Part II.A: What to Make of Oxford? In our last post (here) we discussed the U.S. Supreme Court’s recent decision in Oxford Health Plans LLC v. Sutter, No. 12-135, slip op. (U.S. June 10, 2013), which, among other things, reaffirmed that Section 10(a)(4) of the Federal Arbitration Act (“FAA”) authorizes judicial review of FAA-governed-arbitration-award outcomes based on the labor-arbitration-derived “manifest disregard of the agreement” standard. This post, which has been divided...
Is the Supreme Court Moving Towards a Preemptive Federal Arbitration Procedural Paradigm?
May 10, 2013
Ronald Aronovsky, Professor of Law at Southwestern Law School has published an interesting law review article entitled, The Supreme Court and the Future of Arbitration: Towards a Preemptive Federal Arbitration Procedural Paradigm?, 42 Southwestern Law Review, Number 1, Spring 2013. In his article, Professor Aronovsky examines a number of recent Supreme Court decisions related to the preemptive power of the Federal Arbitration Act. Here is a portion of the introduction: Adopted by Congress...
May 10, 2013
Ronald Aronovsky, Professor of Law at Southwestern Law School has published an interesting law review article entitled, The Supreme Court and the Future of Arbitration: Towards a Preemptive Federal Arbitration Procedural Paradigm?, 42 Southwestern Law Review, Number 1, Spring 2013. In his article, Professor Aronovsky examines a number of recent Supreme Court decisions related to the preemptive power of the Federal Arbitration Act. Here is a portion of the introduction: Adopted by Congress...
U.S. & International Arbitration 2013
April 23, 2013
Four times in the past 15 months the Supreme Court has struck down lower court attempts to limit the impact of the Federal Arbitration Act (FAA) by allowing recourse to the courts — on three of those occasions issuing per curiam orders vacating state court decisions for ignoring Supreme Court precedent. Nitro-Lift Techs. v. Howard, 133 S. Ct. 500 (2012) (Oklahoma); Marmet Health Care Ctr. v. Brown, 132 S. Ct. 1201 (2012) (West Virginia); KPMG LLP v. Cocchi, 132 S. Ct. 23 (2011) (Florida);...
April 23, 2013
Four times in the past 15 months the Supreme Court has struck down lower court attempts to limit the impact of the Federal Arbitration Act (FAA) by allowing recourse to the courts — on three of those occasions issuing per curiam orders vacating state court decisions for ignoring Supreme Court precedent. Nitro-Lift Techs. v. Howard, 133 S. Ct. 500 (2012) (Oklahoma); Marmet Health Care Ctr. v. Brown, 132 S. Ct. 1201 (2012) (West Virginia); KPMG LLP v. Cocchi, 132 S. Ct. 23 (2011) (Florida);...
